R. v. Neubuhr: Rights Infringement vs Justice for Society - Devan Vercaigne

Introduction:

In R. v. Neubuhr, a police officer of the Brandon Police Service (“BPS”) noticed Neubuhr driving a vehicle with a mismatching licence plate in Brandon, Manitoba.[1] After Neubuhr was followed for a while, he was pulled over and immediately volunteered information to the Arresting Officer that the truck was an unregistered vehicle and he had no driver’s licence.[2] The Arresting Officer ran computer checks and found that the accused was telling the truth, did not have a criminal record, and that the licence plates were not reported as stolen. He also described that there was no indication at all from the manner in which the accused spoke or acted that he might be impaired by drugs or alcohol.[3] It is noted by Justice Rempel that “The Provincial Offences Act places a duty on police officers to avoid the arrest of individuals for regulatory offences in the absence of a warrant, where the public interest can be satisfied by other means, like issuing a notice to appear.”[4] However, the Arresting Officer decided to use a more extreme way of handling the situation, and he arrested Neubuhr for driving without a valid driver’s licence; he later was unable to give explanation for why this arrest was reasonably necessary.[5] After the arrest, the Arresting Officer noticed one singular empty beer can in Neubuhr’s vehicle, and he used this fact to justify a bumper-to-bumper search of the vehicle.[6] Upon this search, police found one kilogram of methamphetamine and just over 250 grams of fentanyl; $2600 in cash was also seized.[7] Because of these findings, Neubuhr was charged with possession of methamphetamine and fentanyl for the purpose of trafficking under s. 5(2) of the Controlled Drugs and Substances Act and possession of proceeds of crime pursuant to s. 354 of the Criminal Code.[8] Mr. Neubuhr argues that the evidence was obtained in a manner that violated his rights under ss. 8 (Search and Seizure) and 9 (Arbitrary Detentions) of the CanadianCharter of Rights and Freedoms (the “Charter”).[9] A voir dire was held to determine the fate of the evidence. The remedy sought by the accused was that all of the evidence seized by the BPS be excluded as evidence at trial. Ultimately, this remedy was granted by Justice Rempel, and the findings from the unlawful arrest, search, and seizure are now excluded from the case under s. 24(2) of the Charter.[10] Although it feels wrong to agree that a high-level methamphetamine and fentanyl drug dealer should get away with a crime primarily because the police shouldn’t have been allowed to find the illegal drugs due to Charter infringement, I believe that it was the right decision for the Justice to exclude the evidence in order to uphold and protect Canadian’s Charter rights and the reputation of the administration of justice within Manitoba.

Analysis:

Justice Rempel went through a long analysis in which he ultimately agreed that the arrest of Neubuhr for the traffic violation was unlawful and breached his section 9 rights under the Charter.[11] With regard to the search and seizure, the justice found that “the search of the Chevy based on the presence of a single empty beer can was unreasonable and violated the s. 8 Charter right of the accused to be protected from unreasonable search and seizure.”[12] With these two issues decided, Justice Rempel then had to decide if the methamphetamine and fentanyl should be excluded as evidence, since they were in fact discovered unlawfully. For this, he used the three-step consideration test from R v Grant and R v Harrison to determine if the evidence obtained following the infringement of a Charter right should be excluded from evidence.[13] The three considerations are:

1. The seriousness of the Charter-infringing conduct;

2. The impact on the Charter-protected interest of the accused; and

3. Society’s interest in an adjudication of the case on the merits.

Justice Rempel also included a quote from the Manitoba Court of Appeal case R v Molnar, in which the court had this to say about the above three-step considerations:

Under section 24(2), evidence shall be excluded if, having regard to all of the circumstances, its admission will bring the administration of justice into disrepute. This inquiry requires the courts to balance individual and societal rights and requires a consideration of “all the circumstances” (R v Grant, 2009 SCC 32 at para 85), as “[n]o overarching rule governs how the balance is to be struck (Grant at para 86).[14]

Three Considerations:

a. Seriousness of the Charter-infringing conduct and impact on the Charter-protected interest of the accused:

Under the first consideration, the seriousness of the Charter-infringing conduct, the justice came to the conclusion that “the actions of the police in this case … [show] there has been an intentional, willful [and] reckless disregard to the Charter rights of an accused person.”[15] He quoted the Supreme Court of Canada (“Supreme Court”) R v Le case, which noted “the reputation of the administration of justice requires that courts should dissociate themselves from evidence obtained as a result of police negligence in meeting Charter standards.”[16] The justice followed that the findings of the police conduct, together with the Le case, “weigh[s] heavily in favour of a finding that admission of the resulting evidence would bring the administration of justice into disrepute.”[17] As for the second consideration, it was found that there was an obvious high degree of impact on the accused’s Charter rights by the Arresting Officer, and that this “flagrant disregard of the Charter rights of the accused sends the message to the public that the rights of individuals count for little and that as far as police conduct goes, the end justifies the means.”[18] Justice Rempel strictly expressed that he believed these two considerations together weighed significantly in favour of excluding the methamphetamine and fentanyl as evidence for this case.

b. Society’s interest in an adjudication of the case on the merits:

When analysing the third consideration of mindfulness of society’s interest in an adjudication of the case on the merits, Justice Rempel came to a potentially controversial conclusion that society’s interests in an adjudication are outweighed by the BPS’s Charter infringements of Neubuhr.[19] The justice took guidance from the Supreme Court when he stated:

Even in cases where the impugned evidence passes the standard of “highly reliable” and reaches the standard of “virtually conclusive of guilt of the offence charged” the Supreme Court has cautioned that this third line of inquiry cannot “take on disproportionate significance” in an analysis under s. 24(2) of the Charter.[20]

Ultimately, the court must commit a significant amount of importance in protecting longstanding constitutional norms reflected in their Charter jurisprudence which has emphasized the importance of individuals’ liberty interests.[21]

Decision:

After finding that the arrest, search, and seizure were all conducted unlawfully by the Arresting Officer of the BPS and after going through the three-step considerations for admitting unlawfully obtained evidence, Justice Rempel ultimately decided that:

The strong pull of both the first and second line of inquiry towards exclusion, overwhelm the opposing force of the third line of inquiry towards inclusion and I am satisfied on the balance that the admission of the fruit produced the misconduct of the BPS officers would bring the administration of justice into disrepute.[22]

The justice felt this was justified based on the findings that there was serious Charter-infringing conduct by the officers which caused high impact on the accused, and that this conduct was the exact conduct the Charter was designed to abolish.[23]

My Opinion:

Ultimately, yet certainly with a sense of some moral hesitation, I agree with the final decision from Justice Rempel. I have to imagine that although it would serve society a great justice to see the evidence be allowed in the trial against Neubuhr, it nevertheless would be extremely damaging to all Canadian’s Charter rights and freedoms if the police were allowed to use evidence collected through such serious Charter-infringing police misconduct. Not only this, but allowing such evidence would effectively bring the administration of justice within Manitoba into disrepute. R v Neubuhr will be used as an example to show police and all citizens of Manitoba how vital it is to respect the Charter rights and the significant value the court places in ensuring these rights are affirmed and protected, thus successfully upholding the reputation of the administration of justice. As the Supreme Court said in R v Paterson, “this unpalatable result is the direct product of the manner in which the police chose to conduct themselves.” Thus, the onus is on them to not stray from this standard.[24]

Deeper Consideration:

Hypothetically, imagine that the police had instead found a murder weapon linked to the death of a local young woman. Would you find it acceptable to exclude the evidence in the name of upholding Neubuhr’s Charter rights? I ask this because I feel these different circumstances could certainly change a lot of people’s opinions on whether they agree with the decision in R v Neubuhr. I find this interesting, however, because as the Justice notes, fentanyl and methamphetamine are two extremely deadly and damaging drugs that have taken thousands of lives, young and old, across Canada over many years. In Winnipeg, there has been a serious meth crisis for the past few years, and fentanyl has been causing severe community damage and death across all of Canada in the same time span.[25] I believe it could certainly be said that in Canada, these drugs are even more deadly than weapons. Who knows how many people have died from Neubuhr’s drug trafficking alone? Therefore, I ask myself and the reader, is the goal of upholding Charter rights so severe that it should essentially let killers walk free? This is a question I greatly struggled with when forming my opinion, and although I agree with the justice’s decision, it is one I still find morally difficult to ignore.

[1] R v Neubuhr, 2021 MBQB 225 at para 14 [Neubuhr]. [2] Ibid at para 15. [3] Ibid at para 18. [4] Ibid at paras 21, 22. [5] Ibid at paras 19, 65. [6] Ibid at para 29. [7] Ibid at para 4, 5. [8] Controlled Drugs and Substances Act, SC 1996, c.19, s 5(2); Criminal Code, RSC 1985 c C-46, s 354. [9] Canadian Charter of Rights and Freedoms, ss 8-9, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [10] Neubuhr, supra note 1 at para 85. [11] Ibid at para 26. [12] Ibid at para 37. [13] Ibid at para 41; R v Grant, 2009 SCC 32; R v Harrison, 2009 SCC 34 [Harrison]. [14] Neubuhr, supra note 1 at para 42; R v Molnar, 2018 MBCA 61 at para 39. [15] Neubuhr, supra note 1 at para 62. [16] Ibid at para 49; R v Le, 2019 SCC 34 at para 143 [Le]. [17] Neubuhr, supra note 1 at para 61. [18] Ibid at para 72. [19] Ibid at para 85. [20] Ibid at para 80; Harrison, supra note 1 at para 34. [21] Le, supra note 1 at para 159. [22] Neubuhr, supra note 1 at para 85. [23] Ibid. [24] Ibid at para 58; R v Paterson, 2017 SCC 15 at para 56. [25] Alison Mayes, “Rise in Manitoba meth use seen in soaring rate of ER visits, paramedic calls” (9 November 2020), online: UM Today News <news.umanitoba.ca/meth-use/>.